Allstate Ins. Co. v. Roy

• Court: Superior Court of Maine
• Decided: November 1, 2000
• Docket: CUMcv-99-719
• Status: Unpublished

Opinion

BON ALD |. GARBRE, TATE GF tia ytess

LAW LSS ey CUR BE EI AUD, 38

STATE OF MAINE VEERMS OFFICE OCT 11 2000

CUMBERLAND, ss.

Oct 4 2 27 PH "gg

SUPERIOR COURT CIVIL ACTION DOCKET NO. CV-99-7

AN Cyn — 10/4 /o Deeg

ALLSTATE INSURANCE COMPANY,

Plaintiff Vs. ORDER ON DEFENDANTS' MOTION FOR SUMMARY PETER R. ROY and ROY, BEARDSLEY, JUDGMENT

WILLIAMS & GRANGER, LLC.,

Defendants

The defendants seek a summary judgment on all counts of the plaintiff's complaint (count I: negligence against Peter Roy; count I: negligence against Roy, Beardsley, Williams & Granger; count III: conversion against Peter Roy; and count IV: attorney's fees against Peter Roy). For the following reasons, the motion is granted in part and denied in part.

The defendants’ statement of material facts not in dispute contains no record references. This statement generally is supported by the affidavit of Peter Roy. The majority of the plaintiff's statement of facts are not supported by record references. Some are legal conclusions. See, e.g., Plaintiff's Response, J 4; M.R. Civ. P. 7(d)(1) & (2).7

Further, the plaintiff's statement of facts does not specifically respond to the

defendants’ statement of material facts, paragraph by paragraph. Accordingly, facts

1 Because neither statement of facts contains record references, the court considers both statements of fact.

contained in the defendants' statement of material facts which are not specifically responded to by the plaintiff will be deemed admitted. The court considers the

plaintiff's statement of facts for any additional matters. See Prescott v. State Tax

Assessor, 1998 ME 250, J 6, 721 A.2d 169, 172.

The plaintiff has not raised an issue of fact with regard to the defendants’ receipt prior to disbursement of the settlement proceeds on or about April 22, 1997 of letters regarding the plaintiff's lien claim against those proceeds. See Defendants’ Statement of Material Facts, 7 10, 11, 14, 16, 17, 18.

The plaintiff has raised an issue of fact with regard to the claim of conversion. The plaintiff has raised an issue of fact regarding the signer’s intent that the instrument was payable jointly to the three named payees. See Exhibit A attached to Plaintiff's Complaint; Plaintiff's Response to Defendants’ Statement of Material Facts, 7 8; Plaintiff's Exhibit 2; Defendants’ Statement of Facts, 7 8; 11 M.R.S.A. § 3-

1110(1) (1995); see also 11 M.RS.A. § 3-1110(4); Bank of America Nat’l Trust and

Savings Ass’n v. Allstate Ins. Co., 29 F.Supp. 2d 1129, 1139-40 (C.D. Cal. 1998).

The plaintiff has not raised an issue of fact concerning extraordinary

circumstances requiring an award of attorney fees. See Linscott v. Foy, 1998 ME 206, { 17, 716 A.2d 1017, 1021 (attorneys fees not awarded as sanction in absence of “significant bad faith” on part of attorney). The entry is The Defendants’ Motion for Summary Judgment on

Counts I, II and IV of the Plaintiff's Complaint is GRANTED. The Defendants’ Motion for Summary

> Judgment on Count III of the Plaintiff's Complaint is DENIED.

Dated: October 4, 2000 (dasel Dia

Nancy Mills Justice, i od ourt

CUM-CV-99-719 Date Filed __12-15-99 CUMBERLAND Docket No. CV 99-719 County

Action Removal from District Court - Legal Malpractice

ALLSTATE INSURANCE COMPANY PETER R. ROY

ROY, BEARDSLEY, WILLIAMS, & GRANGER, L] fka ROY, BEARDSLEY, WILLIAMS & KESARIS

VS.

Plaintiff's Attorney I Defendant’s Attorney

JOHN D. GRIFFIN ESQ 782-4741 as PRO SF 667 = 9494

PO BOX 1381, LEWISTON ME 04200 PO-BOX-723,5- ELLSWORTH ME-04605-— es Michael K. Martin, Esq. PO Box 9733, Portland ME 04104

Ame

ocT 11 2000

DONALD L. ©

te a Date of

teur

.

STATE OF MAINE ee SUPERIOR COURT

CUMBERLAND, ss ung ea? ss | i Mee CIVIL ACTION VLER es geF S oe DOCKET NO. CV-99-719 ~ 2000 © ALLSTATE INSURANCE HOY | 8 ge; jw NA~ CaN ib] 81/ COMPANY, 00 Plaintiff io VS. JUDGMENT ., PETER R. ROY and NALD L. Genranent ROY, BEARDSLEY, WILLIAMS 89 LAW Linsey & GRANGER, LLC., Lees nov 12 aie

Jury waived trial on count III of the plaintiff's gomplaint, in which the | plaintiff alleges conversion by defendant Peter Roy, was held on 10/31/00 Based on this record, the plaintiff has failed to prove (1) that it had a property interest in the portion of the $15,000 Maryland Casualty check retained by the defendant law firm; (2) the amount of the alleged property interest; and (3) that defendant Peter Roy

converted the alleged property interest. See Withers v. Hackett, 1998 ME 164, J 7,

714 A.2d 798, 800. The entry 1s

Judgment is entered in favor of the Defendant Peter Roy and against the Plaintiff Allstate Insurance Company on Count TI of the Plaintiff's Complaint.

Date: October 31, 2000 Cel Dee

Nancy Mills y Justice, Superior col

Date Filed _12715-99 CUMBERLAND

County

ALLSTATE INSURANCE COMPANY

Docket No. _CV_ 99-719

PETER R. ROY

ROY, BEARDSLEY, WILLIAMS, & GRANGER, L’ fka ROY, BEARDSLEY, WILLIAMS & KESARIS

Plaintiff's Attorney JOHN BD. GRIFFIN ESQ 782-4741 PO BOX 1381, LEWISTON ME 04240

Date of Fntry

Defendant’s Attomey

PRO SE---- 66797121

PO BOC 7235— ELLSWORTH ME-G4605-—- Michael K. Martin, Esq.

PO Box 9733, Portland ME 04104